Mason-Funk v. City of Neenah

• Decision Date: 01 November 2017
• Docket Number: Case No. 16–C–978
• Citation: 296 F.Supp.3d 1006
• Parties: Theresa MASON–FUNK, individually and in her capacity as the Special Administrator of the Estate of Michael L. Funk, Plaintiff, v. CITY OF NEENAH, Craig Hoffer, and Robert Ross, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

296 F.Supp.3d 1006

Theresa MASON–FUNK, individually and in her capacity as the Special Administrator of the Estate of Michael L. Funk, Plaintiff,

v.CITY OF NEENAH, Craig Hoffer, and Robert Ross, Defendants.

Case No. 16–C–978

United States District Court, E.D. Wisconsin.

Signed November 1, 2017

Joseph A. Ranney, DeWitt Ross & Stevens SC, Madison, WI, Matthew J. Hills, Howard B Schoenfeld, DeWitt Ross & Stevens SC, Brookfield, WI, for Plaintiff.

Ann C. Wirth, Gregg J. Gunta, John A Wolfgang, Gunta Law Offices SC, Wauwatosa, WI, James G. Godlewski, City of Neenah Office of the City Attorney, Neenah, WI, Thomas Armstrong, Cabaniss Law, Milwaukee, WI, for Defendants.

DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

William C. Griesbach, Chief Judge

Plaintiff, Theresa Mason–Funk, brought this action under 42 U.S.C. § 1983, individually and in her capacity as the personal representative of the estate of her husband Michael Funk, seeking damages against Officers Craig Hoffer and Robert Ross of the Neenah Police Department (NPD) for the fatal shooting of her husband. She also asserts claims for battery and loss of society and companionship against the officers under Wisconsin's wrongful death statute. The City of Neenah, which is statutorily required to indemnify officers for liability arising out of acts performed in the course of their employment, is also named as a defendant. The Court has jurisdiction over Plaintiff's § 1983 claim under 28 U.S.C. § 1331 and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. The case is before the Court on Defendants' motion for summary judgment. Defendants argue that the use of force used was reasonable under the circumstances and, alternatively, that they are immune from liability under federal and state law. For the reasons set forth, Defendants' motion will be granted.

BACKGROUND

This case arises out of the tragic consequences of a horrendous crime committed by Brian Flatoff on December 5, 2015. At approximately 8:35 a.m. on that day, Brian Flatoff entered Eagle Nation Cycles, a motorcycle shop located at 206 Main Street in the City of Neenah, Wisconsin, with a loaded MAC–10 machine pistol and took Michael Funk, Ryan Moderson, Ethan Moderson, and Michael Petersen hostage. Pl.'s Proposed Findings of Fact (PPFOF) ¶ 1, ECF No. 32. Flatoff instructed Ryan Moderson to call Vance Dalton, with whom Flatoff had a dispute, and tell him to come to the motorcycle shop immediately. After placing the call, Moderson kept the telephone line with Dalton open, and Dalton relayed information about the situation to local authorities.

At approximately 8:56 a.m., Winnebago County Dispatch notified the NPD about a weapons call at Eagle Nation and reported that a shot had been fired. Defs.' Proposed Findings of Fact (DPFOF) ¶ 1, ECF No. 24. The NPD alerted officers to the hostage situation and directed them to proceed to the scene. The responding officers included Lieutenant Shawn O'Bre; Officer Jonathan Kuffel, the NPD SWAT team leader; Officer Craig Hoffer, the assistant SWAT team leader; Officer Robert Ross; and Sergeant Angela Eichmann. Officers from the nearby City of Menasha Police Department also responded. PPFOF ¶ 12.

While en route to the scene, Lieutenant O'Bre learned there was a man inside Eagle Nation with a weapon and that he had several hostages. Beginning at 8:58 a.m., Officer Ross and other officers listening to the Main Channel dispatch learned that there were three possible hostages in the shop, that the hostage taker had a MAC–10 or MOC–10, and that the suspect was a white male with long hair and a beard, wearing a plaid jacket. DPFOF ¶¶ 8 12. The officers did not receive physical descriptions of any of the hostages. Id. ¶ 13.

Upon arrival at Eagle Nation, Lieutenant O'Bre advised area units to set up a perimeter around the shop. Shortly thereafter, dispatch informed the officers that an individual who was believed to be the shooter left the shop in a truck. Sergeant Eichmann and Officer Ross stopped the vehicle and identified the driver as Ethan Moderson, who left the shop undetected by Flatoff. Moderson confirmed that there was still a man in the shop with a gun. After the officers released Moderson, Lieutenant O'Bre asked Sergeant Eichmann to manage the perimeter and O'Bre began forming a "Hasty Team" consisting of Kuffel, O'Bre, Ross, Hoffer, and Lieutenant Tyrone Thompson to enter the shop if necessary. Id. ¶ 23. Officer Kuffel eventually took command of the Hasty Team.

At approximately 9:21 a.m., the officers learned that Flatoff had threatened to start shooting if Dalton did not show up to Eagle Nation within five minutes. Id. ¶ 25. Approximately 18 minutes later, at 9:39 a.m., dispatch reported that Flatoff was threatening to kill everyone if Dalton did not arrive in the next minute or so. Id. ¶ 28. Based on these facts, Officer Kuffel concluded it was necessary to forcibly enter the shop and prevent Flatoff from killing or seriously harming the hostages. At around 9:40 a.m. he began "stacking" the team into formation to enter Eagle Nation through the rear door from the alley on the south side of the building. Id. ¶ 30. He stacked the officers in the following order: Lieutenant Thompson with a shield as number one, Lieutenant O'Bre as the driver as number two, Officer Hoffer as number three, Lieutenant Kuffel as number four, and Officer Ross as number five. Officer Heiting trailed the team with a ram in case he needed to force the door open.

A dashboard camera on a squad car parked at the west end of the alley facing in an easterly direction (Squad 1 video) captured the outdoor events that occurred next. ECF No. 25–2. The Hasty Team entered the shop at 9:42:07 a.m. PPFOF ¶ 31. Motorcycles and other items were scattered around the rear shop area, limiting the team's ingress. Shortly after the team entered the shop, Lieutenant Thompson and Lieutenant O'Bre fell down a set of stairs just inside the doorway. Upon entry, the officers called out in a loud voice: "Police," "get down," "get down on the ground right now," and "let me see your hands." DPFOF ¶ 34.

At the time the Hasty Team entered Eagle Nation, Funk was seated at a desk facing the rear entrance and Flatoff stood close to Funk. Funk dropped to the floor face down and Flatoff crawled behind Funk and began shooting at the Hasty Team. A bullet struck Officer Hoffer's helmet above his right eye around 9:42:14 a.m. PPFOF ¶ 34. Six seconds later, a bullet struck a fire extinguisher, releasing powder into the air and obscuring the officers' view. The Hasty Team initially returned fire but then quickly withdrew from the shop at approximately 9:43:02 a.m. Id. ¶ 36.

Once outside, the Hasty Team shouted into the shop, which was met with more gunfire. DPFOF ¶ 52. Officers Kuffel and Hoffer thought at the time that there were no hostages inside Eagle Nation and instead believed the officers had walked into an ambush. Id. ¶ 54. In any event, Lieutenant O'Bre, Lieutenant Thompson, and Officer Kuffel retreated to Gord's Bar parking lot on the same side of the alley and to the west of Eagle Nation's rear entrance. Officers Hoffer and Ross joined Sergeant Eichmann and two Menasha Police Department officers and retreated to the east side of Vicky's Beauty Salon across the alley and to the east of the motorcycle shop.

At approximately 9:45 a.m., Flatoff instructed Funk to close the shop's rear door, which the Hasty Team had left open, and warned Funk he would shoot him if he tried to escape. PPFOF ¶ 61. Funk proceeded to the door, started to close it, but then dove out of the shop onto the ground outside. Id. ¶ 63. As he did so, Flatoff fired in his direction. Once outside the shop, Funk scrambled behind a truck parked directly behind the shop in an apparent attempt to take cover from Flatoff in the event he followed him out the door. From his position behind the truck and facing the door to the shop he had just exited, Funk drew his silver-colored handgun from his waistband holster and held it in both hands in a lowered position. Id. ¶¶ 65, 67.

In the meantime, upon hearing the shots Flatoff had fired at Funk when he dove out the door, Officers Hoffer and Ross moved back toward the alley and joined City of Menasha Police Officer Raymond Berna, who was stationed at the southeast corner of Vicky's Beauty Salon, where they could see the rear door of the motorcycle shop. Id. ¶ 73. By the time Officers Hoffer and Ross arrived at that position, Funk had already exited the shop and had drawn his pistol. DPFOF ¶ 88. As Funk turned in a counter-clockwise direction and began running away from the truck and across the alley at 9:45:38 a.m., Officers Hoffer and Ross fired at him, striking him first in the left hip and leg, and then continuing to strike him as he fell to the ground. PPFOF ¶ 78. Over a five-second period, Officer Hoffer fired eight shots, striking Funk twice, and Officer Ross fired eleven shots, hitting Funk with five. Id. ¶ 80.

From the time Funk exited Eagle Nation until he was shot, neither Officer Hoffer, Officer Ross, nor any other police officer gave him a warning or any sort of instruction. Id. ¶ 83. Officer Hoffer told Wisconsin Department of Justice investigators shortly after the incident that he thought he ordered Funk to show his hands, but he later conceded he did not do so. Id. ¶ 84. Officer Ross did not believe it was feasible to issue a warning to Funk between the time he first saw Funk with the gun in his hand and the time Funk began turning toward the officers. DPFOF ¶ 74. The only statement directed by the police to Funk after he entered the alley was given fourteen seconds after the officers finished shooting and Funk had stopped moving.

After Funk was down in the alley, Officer Hoffer and Sergeant Eichmann discussed whether an officer should retrieve Funk to provide medical attention. Officer Hoffer instructed the officers to leave Funk because "he could care less right now if he sits there...